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Treaty provokes tensions over rights

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Siân Harris finds out why a treaty on intellectual property and digital rights is causing widespread protests

Around the world many blog inches and social network discussions are being devoted to a new treaty on intellectual property. With a name that sounds like a scholarly journal and text that, in all honesty, hardly makes riveting reading, the ACTA treaty may seem an unlikely choice for attracting public attention.

But, dry read though it may be, ACTA (Anti-Counterfeiting Trade Agreement) has led people to take to the streets in protest, sign online petitions, lobby government officials and, in some cases, launch cyber attacks on businesses that support the treaty.

The latest development is that, in late February, the European Commission took the unusual step of referring the treaty to the European Court of Justice asking the court to check that ACTA did not contravene the EU's fundamental human rights and freedoms. This referral will delay the ratification of the treaty by the EU, one of the most important trading groups whose interests the treaty is supposed to be furthering.

So what is ACTA and why has it made people so angry? ACTA’s purpose is to give its signatories authority to tackle infringements of existing intellectual property and copyright laws. As Angela Mills Wade, executive director of the European Publishers Council (EPC), explained, ‘Legal certainty and common rules are needed for European companies and right-holders when incidents of piracy take place outside the EU. ACTA will give right-holders a set of common rules regarding the way their complaint is dealt with and a set of practical questions to deal with urgent protection, evidence collection and procedures for seizure of counterfeit or pirated goods and content.’

Much of ACTA’s text relates to, for example, destroying counterfeit products and treating the commercial sale of such goods as criminal. Such measures, although bad news for manufacturers of products such as fake designer handbags, hardly sound extreme.

But there are concerns, especially about whether ACTA could impede the process of taking legitimate products across international borders. In an analysis of the treaty, the charity Oxfam warned that ‘ACTA will undermine access to affordable medicines by impeding trade in quality generic medicines,’ noting that this has already been the result of previous measures to tighten up intellectual property enforcement.

The Oxfam report continued: ‘There are great concerns that ACTA’s impact will extend beyond those countries that initially sign the agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics. ACTA provides for the seizure of in-transit medicines that do not infringe any IP in the place of production or consumption; such actions could interfere with international trade in lawfully available products.’

Indeed, this issue of generic medicines was one of the reasons behind the resignation in January of Kader Arif, a member of the European parliament's international trade group and the former lead negotiator of ACTA.

However, European Trade Commissioner Karel De Gucht countered these claims in a speech in early March when he argued that ‘ACTA will not impose any restrictions on trade in generic medicines.’ He claimed that ‘ACTA is very closely modeled on the European system’ and that ‘there will be no change whatsoever to the current balance of rights and safeguards for European citizens.’

And, in a document called ‘10 Myths about ACTA’ the EC argues that: ‘There are no provisions in ACTA that could directly or indirectly affect the legitimate trade in generic medicines or, more broadly, global public health.’

It is not medicines, however, that are causing the biggest stir about ACTA. Instead it is the parts of the treaty that relate to the digital space that are generating particular controversy. More than one blog post has stated that: ‘ACTA threatens your privacy and freedom of speech.’ The concerns are that the definitions of criminal liability in the treaty are broad and will push private companies to police the internet and that private interests will be given more control over what users do online and more disclosure of users’ personal information. In addition, there is concern over harsh penalties for acts such as downloading music tracks without paying the copyright holder.

Commissioner De Gucht disputed these claims too in his speech in early March: ‘Today's law is quite specific here. To steal even an apple remains a crime that can be reported to the police. However, to download a song without paying for it, while strictly speaking illegal, is not a criminal offence. There is no possibility of punitive action unless the activity was carried out at a commercial scale. ACTA will not criminalise anything that is not already a crime.’

And these comments might shed some light on why the anti-ACTA protests are so fierce. Many of the discussions only loosely relate to the actual text of the ACTA treaty. Instead it is in some cases the underlying notions of intellectual property and copyright that are being challenged.

‘Clearly there have been anti-copyright forces at work which have muddied the water leading to many examples of mis-information and scaremongering, particularly with regard to the impact of the treaty on freedom of expression. Some of the accusations have, quite frankly, been offensive. ACTA won’t lead to monitoring private conversations online or censoring free speech. It does not create any new levels of protection of copyright and certainly does not limit free speech,’ argued Wade of the EPC.

The treaty text states that the procedures for tackling infringement of rights over digital networks, ‘shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party's law, preserves fundamental principles such as freedom of expression, fair process, and privacy.’

The deliberations of the European Court of Justice could take up to two years. Protesters against the treaty want its implications to be fully assessed, while its supporters – including politicians in the countries that have already signed it - are keen to assure the public that ACTA will not cause the problems that they fear.

‘I hope that this process will lead to greater understanding of the positive effects the trade agreement will have on the EU, its economy and its citizens through a discussion based on fact not hype,’ noted Wade of the EPC.

Meanwhile protests continue. According to online campaign group Avaaz, ‘The EC is asking their Court of Justice to give the treaty the green light and renew its momentum -- but they plan to manipulate the process by giving the court only a narrow, uncontroversial question to consider, hoping it will lead to a positive outcome.’

According to Commissioner De Gucht in a statement about the court process on 22 February: ‘We are planning to ask Europe’s highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in [the] case of intellectual property.’

Whether this question is narrow or not, when the courts begin to discuss ACTA, a surprisingly large number of eyes around the world will be following the deliberations.